Supreme Court of Canada Hearings

Her Majesty the Queen v. Marc-André Boulanger (39710)

The respondent, Marc-André Boulanger, faced four charges laid under, among other things, the Controlled Drugs and Substances Act. The Court of Québec granted the respondent’s motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms and entered a stay of proceedings on the four charges. The trial judge found a net delay of 32 months and 10 days, which was therefore above the presumptive ceiling of 30 months.The majority of the Quebec Court of Appeal dismissed the prosecution’s appeal from the Court of Québec’s decision. Although the majority’s analysis differed from that of the trial judge with regard to the delay related to the unavailability of the respondent’s lawyer, the majority was of the view that the trial judge had correctly stayed the proceedings and agreed with the judge’s overall assessment of the main cause of the delay in the progress of this case: the absence of a carefully crafted prosecution plan. Chamberland J.A., dissenting, would have allowed the appeal, set aside the Court of Québec’s decision, dismissed the respondent’s motion for a stay of proceedings, and referred the case back to the same judge for a decision on the outcome of the trial. In his view, 84 days had to be added to the defence delay, resulting in a net delay below the applicable 30 month ceiling. Argued Date 2022-02-09 Keywords Canadian charter (Criminal) - Right to be tried within a reasonable time (s. 11(b)), Criminal law - Charter of Rights - Right to be tried within a reasonable time - Criminal law - Whether majority erred in law in refusing to subtract 84 day delay for which respondent admitted being responsible and which was attributable to his conduct - Whether majority erred in law in interfering with trial judge’s decision to attribute to respondent 112-day delay caused by fact that his lawyer was unavailable, even though that finding was within judge’s discretion. Notes (Quebec) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Attorney General of Ontario v. G (38585)

(PUBLICATION BAN IN CASE)In 2002, G was found not criminally responsible by reason of mental disorder on charges of sexual assault and other charges. In 2003, G was given an absolute discharge by the Ontario Review Board. However, pursuant to Christopher’s Law ( Offender Registry), 2000, S.O. 2000, c. 1, G was obliged to register under the provincial offender registry and report to provincial authorities for life. G was also required to register and report under the federal registry, pursuant to the Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). In 2014, G commenced legal proceedings seeking a declaration that the application of the federal and provincial offender registries to persons found not criminally responsible who are then granted a subsequent absolute discharge infringes their rights under ss. 7 and 15 of the Charter.The Ontario Superior Court of Justice dismissed G’s application. The application judge found that despite some negative impact resulting from the offender registry requirements, there was no s. 7 or s. 15 Charter breach. The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal offender registries infringe G’s s. 15 Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. In terms of remedy, the Court of Appeal declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. It suspended the effect of the declaration for 12 months; however, it exempted G from this suspension.The Attorney General of Ontario is appealing the portion of the Court of Appeal’s judgment granting an individual exemption from the period of suspension to G. Argued Date 2020-02-20 Keywords Canadian charter (Criminal) - Right to equality, Discrimination based on mental or physical disability, Remedy, Criminal law, Mental disorder, Constitutional law - Charter of rights - Right to equality - Discrimination based on mental or physical disability - Remedy - Criminal law -Mental disorder - Respondent found not criminally responsible by reason of mental disorder in respect of sexual assault and other charges - Respondent granted absolute discharge but required to register under provincial offender registry and report to authorities for life, and required to register and report under federal registry - Application judge finding no breach under ss. 7 or 15 of Charter - Court of Appeal finding breach of s. 15 and declaring operation of offender registry legislation unconstitutional - Declaration of invalidity suspended for 12 months but respondent exempt from period of suspension - Whether offender registry legislation infringes right to equality without discrimination based on absence of individualized exceptions - If so, whether infringement is reasonable limit demonstrably justified in free and democratic society - Whether s. 15 of Charter requires individualized assessment before requiring persons found not criminally responsible who are granted absolute discharge to register and report under offender registry - Whether Court of Appeal erred in declining to follow R. v. Demers, [2004] 2 S.C.R. 489 and in granting individual relief to respondent during period of suspension of declaration of invalidity - Christopher’s Law ( Offender Registry), 2000, S.O. 2000, c. 1 - Canadian Charter of Rights and Freedoms, ss. 7, 15. Notes (Ontario) (Criminal) (By Leave) (Sealing order) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Ca

Child Custody Trilogy (Day 2/2) (39533, 39567, 39558)

Ashley Suzanne Barendregt v. Geoff Bradley Grebliunas
The parties were married in 2013 and separated in 2018 and have two children, ages 7 and 5. In December 2019, the trial judge granted the appellant’s application for primary residence of the children and to relocate with them to a town a thousand kilometres away from the former matrimonial home where the respondent resided. This decision was overturned on appeal but the order was stayed.
Tiffany Jo Kreke v. Amro Abdullah M Alansari
The parties separated after ten years of marriage. They had one child together and the applicant had two children from a previous marriage. The Court of Appeal overturned the trial judge’s decision that awarded joint custody of the one child, with primary care to the applicant and allowed her to relocate within the province with that child. It also reduced the amount of spousal support awarded to her. A new trial was ordered on the issues of custody, access, primary care and relocation.
B.J.T. v. J.D.
The father and mother were married in 2012 in Alberta and separated less than a year later when the mother returned to Prince Edward Island. The father was unaware that the mother was pregnant when she left. Shortly after the child was born, the applicant grandmother came to reside with the mother and child. When the child was four years of age, and residing only with his mother, he was apprehended by the Director of Child Protection. He was eventually placed in the care of the applicant. The Director subsequently alerted the father of the child’s existence then supported his contested application for permanent custody. The trial judge held that the child should be permanently placed with the grandmother in Prince Edward Island. On appeal, the majority held that the child should be permanently placed in his father’s custody in Alberta.
Argued Date
2021-12-01 and 2021-12-02
Disclaimers
This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was excerpted from material prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Child Custody Trilogy (Day 1/2) (39533, 39567, 39558)

Ashley Suzanne Barendregt v. Geoff Bradley Grebliunas
The parties were married in 2013 and separated in 2018 and have two children, ages 7 and 5. In December 2019, the trial judge granted the appellant’s application for primary residence of the children and to relocate with them to a town a thousand kilometres away from the former matrimonial home where the respondent resided. This decision was overturned on appeal but the order was stayed.
Tiffany Jo Kreke v. Amro Abdullah M Alansari
The parties separated after ten years of marriage. They had one child together and the applicant had two children from a previous marriage. The Court of Appeal overturned the trial judge’s decision that awarded joint custody of the one child, with primary care to the applicant and allowed her to relocate within the province with that child. It also reduced the amount of spousal support awarded to her. A new trial was ordered on the issues of custody, access, primary care and relocation.
B.J.T. v. J.D.
The father and mother were married in 2012 in Alberta and separated less than a year later when the mother returned to Prince Edward Island. The father was unaware that the mother was pregnant when she left. Shortly after the child was born, the applicant grandmother came to reside with the mother and child. When the child was four years of age, and residing only with his mother, he was apprehended by the Director of Child Protection. He was eventually placed in the care of the applicant. The Director subsequently alerted the father of the child’s existence then supported his contested application for permanent custody. The trial judge held that the child should be permanently placed with the grandmother in Prince Edward Island. On appeal, the majority held that the child should be permanently placed in his father’s custody in Alberta.
Argued Date
2021-12-01 and 2021-12-02
Disclaimers
This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was excerpted from material prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Peace River Hydro Partners, et al. v. Petrowest Corporation, et al. (39547)

The parties entered into a partnership agreement and a guarantee and cross indemnity agreement. The partnership, Peace River Hydro Partners, commenced work. It subcontracted some work to Petrowest Corporation and its affiliates pursuant to purchase orders and it entered into a subcontract agreement with Petrowest Civil Services LP. Petrowest Corporation and its affiliates became insolvent. Ernst and Young Inc. was appointed as their receiver. Ernst & Young Inc. assigned Petrowest Corporations’s affiliates into bankruptcy and thereafter acted as both a trustee in bankruptcy and a receiver. Petrowest Corporation and its affiliates commenced a civil claim alleging amounts are owed to them under the general partnership agreement, the guarantee and cross-indemnity agreement, the purchase orders, and the subcontract agreement. These agreements contain arbitration clauses. The appellants applied under s. 15 of the Arbitration Act, RSBC 1996, c. 55, to stay the proceedings so that the matters could be referred to arbitration. The Supreme Court of British Columbia dismissed the application. The Court of Appeal dismissed an appeal. Argued Date 2022-01-19 Keywords Bankruptcy and insolvency - Receiver, Commercial law, Contracts, Arbitration agreement - Bankruptcy and Insolvency — Receivership — Commercial law — Contracts — Arbitration agreements — Receiver and trustee in bankruptcy of debtor companies claims contracting parties owe amounts to debtor companies — Receiver commences action — Agreements in issue contain mandatory arbitration clauses — Contracting parties seek stay of proceedings and arbitration — Whether receiver bound by arbitration clauses — Whether doctrine of separability allows receivers to disclaim arbitration clauses within agreements while pursuing rights under same agreements — Arbitration Act, RSBC 1996, c. 55, s. 15. Notes (British Columbia) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al. (39418)

The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed proposed tariffs for the communication to the public by telecommunication of work in its repertoire through an online music service. However, before the Board considered the proposed tariffs, the Copyright Modernization Act, S.C. 2012, c. 20, amended the Copyright Act, R.S.C. 1985, c. C-42. In particular, it added three “making available” provisions in ss. 2.4(1.1), 15(1.1)(d) and 18(1.1)(a). Section 2.4(1.1) provides that, for the purposes of the Copyright Act, “communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”. A few days after the Copyright Modernization Act was enacted but before it came into force, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (“ESA”), was released. It held that the transmission of a musical work over the Internet that results in a download of that work is not a communication by telecommunication, so royalties were not available for those downloads.In relation to SOCAN’s proposed tariffs, the Board decided to consider the interpretation of the “making available” provisions separately from the tariff. It invited written submissions from anyone with an interest in the interpretation of the “making available” provisions and received submissions from more than 30 organizations. It found that s. 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within s. 3(1)(f) of that Act and, thus, an act that triggers a tariff entitlement. The Federal Court of Appeal quashed the Board’s decision regarding the meaning of the “making available” provisions. Argued Date 2022-01-18 Keywords Intellectual property - Copyright - Intellectual property - Copyright - Right to communicate work to public by telecommunication - Making available - Communication to public by telecommunication defined as including making work or other subject matter available to public by telecommunication such that public may have access to it at place and time chose by them in Copyright Act, R.S.C. 1985, c. 42, s. 2.4(1.1) - Whether s. 2.4(1.1) makes the act of making a work available to the public for on-demand access a communication to the public by telecommunication attracts a licence fee, whether the work is subsequently transmitted as a stream, a download, in another format, or not at all - Whether s. 2.4(1.1) expands the meaning of “communication” to include the initial act of making available to the public, regardless of the means of transmission, or whether it is transmitted at all, and any subsequent transmission - Whether any subsequent transmissions merge with the initial act of making available - Whether the expanded communication right is first triggered by the initial act of making content accessible and extends to all subsequent transmissions, if they occur, irrespective of the timing or technological means of transmission - How s. 2.4(1.1) affects Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Notes (Federal Court) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the

Attorney General of Quebec, et al. v. 9147-0732 Québec inc. (38613)

The respondent, a private company, was issued a statement of offence under the Quebec Building Act for carrying out certain construction work as a contractor without holding a current licence for that purpose. Under s. 197.1 of the Act, the penalty for such an offence is a mandatory fine for a minimum amount that varies depending on who the offender is, that is, whether the offender is a natural person or a legal person. The respondent filed a notice of intention to question the constitutionality of the fine provided for in s. 197.1, arguing that the fine violated its right to be protected against “any cruel and unusual treatment or punishment” under s. 12 of the Canadian Charter of Rights and Freedoms.At trial, the Court of Québec held that it was not necessary to rule on the issue of the application of s. 12 of the Charter to legal persons, because the minimum fine at issue was at any rate not cruel and unusual. The respondent was found guilty, and a fine of $30,843 was imposed. On appeal, the Quebec Superior Court affirmed that decision and added that legal persons such as the respondent could not benefit from the protection of s. 12 of the Charter. A majority of the Quebec Court of Appeal set aside the decisions of the lower courts and held that s. 12 of the Charter can in fact apply to legal persons. The matter was returned to the trial court to rule on the specific issue of the fine provided for in s. 197.1 of the Act. Argued Date 2020-01-22 Keywords Canadian charter (Non-criminal) - Constitutional law, Cruel and unusual treatment or punishment (s. 12) - Charter of Rights - Cruel and unusual treatment or punishment - Application of Charter rights to legal persons - Statement of offence issued against business corporation for carrying out construction work as contractor without holding current licence - Provincial building legislation providing for mandatory minimum fine of $30,843 - Whether legal person can benefit from protection of section 12 of Charter - Canadian Charter of Rights and Freedoms, s. 12 - Building Act, CQLR, c. B 1.1, ss. 46, 197.1. Notes (Quebec) (Criminal) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Alan Teck Meng Lai v. Her Majesty the Queen (39577)

(PUBLICATION BAN)The appellant was charged in August 2013 with a number of sexual offences. In November 2017, he sought a stay of proceedings due to a breach of his s. 11(b) Charter right to trial within a reasonable delay. The trial judge found that the total expected delay for the proceedings would be 57 months, and he subtracted a period of 25 months which he attributed to two discrete exceptional events: a re-election by the accused, and an underestimate of the time required for the trial. The remaining delay of 32 months was still above the presumptive ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, but the trial judge concluded that the additional delay was justified under the transitional exceptional circumstance, and dismissed the application. The appellant was found guilty at the conclusion of his trial.The appellant appealed his convictions on the basis that the trial judge erred in dismissing his stay application. A majority of the Court of Appeal for British Columbia dismissed the appeal and upheld the convictions. It held that the trial judge had erred in excluding the period attributable to the appellant’s re-election from the overall delay, and found the net delay to be 43 months. The majority held that the 43-month delay was nevertheless justified by the transitional exceptional circumstance. In dissent, Butler J.A. found that the transitional exceptional circumstance did not apply, and would have allowed the appeal and entered a stay of proceedings. Argued Date 2021-12-08 Keywords Criminal law - Canadian charter (Criminal) - Criminal law - Charter of Rights - Right to trial within a reasonable delay - Discrete exceptional events - Transitional exceptional circumstance - Whether the delay of 43 months is justified as a transitional exceptional circumstance under s. 11(b) of the Charter of Rights and Freedoms. Notes (British Columbia) (Criminal) (As of Right) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Her Majesty the Queen v. Kevin Eric Goforth (39568)

(PUBLICATION BAN)The respondent, Mr. Goforth, and his wife were jointly charged with the second-degree murder of a four-year-old child they had been fostering (“older child”), and with unlawfully causing bodily harm to a second two-year-old foster child (“younger child”). The predicate offence underlying both charges was failing to provide the necessaries of life, contrary to s. 215 of the Criminal Code. A jury convicted both accused of unlawfully causing bodily harm to the younger child, and found Ms. Goforth guilty of the second-degree murder of the older child. The jury found Mr. Goforth guilty of the lesser and included offence of manslaughter in relation to the death of the older child. Mr. Goforth appealed his convictions.A majority of the Court of Appeal for Saskatchewan allowed the appeal, set aside Mr. Goforth’s convictions, and ordered a new trial. The majority did not find error in the trial judge’s charge to the jury in relation to the actus reus of the offence of failing to provide the necessaries of life, but concluded that the trial judge’s explanation of mens rea contained material legal error and that the charge failed to adequately relate the evidence to the mens rea requirements of s. 215. In dissent, Caldwell J.A. would have dismissed the appeal and upheld the convictions. Argued Date 2021-12-07 Keywords Criminal law - Appeals, Charge to jury, Offences - Criminal law - Appeals - Charge to jury - Offences - Failure to provide necessaries of life - Elements of mens rea - Whether the Court of Appeal erred by finding the trial judge failed to provide adequate directions to the jury when relating the evidence to the mens rea of the predicate offence of failing to provide the necessaries of life - Whether the Court of Appeal erred by finding tthe respondent’s personal characteristics were relevant factors in the objective mens rea analysis - Whether the Court of Appeal erred by finding the trial judge’s mens rea instructions may have confused the jury - Whether the Court of Appeal erred by applying an incorrect standard to its review of the jury instructions - Criminal Code, R.S.C. 1985, c. C-46, s. 215. Notes (Saskatchewan) (Criminal) (As of Right) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Her Majesty the Queen v. J.F. (39267)

(PUBLICATION BAN IN CASE)In February 2011, the respondent, J.F., was charged with several offences involving sexual acts committed between 1986 and 2001. While judgment was reserved, the Supreme Court rendered its decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Following the first trial, J.F. was acquitted in February 2017. The total delay between the charges and the verdict was 72 months and 2 days. In June 2018, the Quebec Court of Appeal ordered a new trial because of errors of law in the trial judgment. The delay between that order and the anticipated end of the new trial was 10 months and 5 days. J.F. filed a motion for a stay of proceedings under s. 11(b) of the Charter in December 2018. The trial judge found that the delay for the first trial was unreasonable and that J.F. had never waived his right to be tried within a reasonable time. She granted the motion and ordered a stay of proceedings in February 2019. In a unanimous judgment, the Court of Appeal upheld the trial judge’s order, but for reasons that differed from those of the trial judge. Argued Date 2021-11-30 Keywords Canadian charter (Criminal) - Criminal law - Charter of Rights - Criminal law - Tried within reasonable time - Trial delay - Ceilings - Whether failure to raise, at first trial or on appeal, possible infringement of right to be tried within reasonable time amounts to waiver of right to raise it during subsequent trial - Whether Jordan framework should be used to consider trial delay for previous trial, delay that is completely over and can no longer be remedied - Canadian Charter of Rights and Freedoms, s. 11(b). Notes (Quebec) (Criminal) (By Leave) (Publication ban in case) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).